The Brett Kavanaugh mess slogs on, and I’m still detecting some major misconceptions surrounding the federal judge’s nomination for a Supreme Court seat. Herewith my effort to clear up perhaps the biggest: that the Senate Judiciary Committee and full Senate should apply the same standards of evidence and presumption of innocence when considering the charges against Kavanaugh as these bodies would if he were facing criminal or even civil charges.
There’s no doubt that Kavanaugh deserves fair treatment, and that, all else equal, accusations alone shouldn’t be enough to derail his confirmation. But Kavanaugh is not on trial; so far he faces no punishment, either in the form of jail time or fines. His reputation has indeed been wounded, perhaps mortally so, and that’s far from nothing. Kavanaugh’s family in particular deserves everyone’s deep sympathy. Yet no one can overlook the distinct possibility that his reputation deserves to have been wounded, and that if so, the responsibility for his family’s sufferings would rest on his shoulders.
More important, this issue of course brings us to the central challenge of defining fairness – both in and out of court – and in connection with sex offenses, especially when allegedly committed by men against women, and even in the absence of corroborating evidence. In a world, or country, in which men and women enjoyed full equality not only legally, but in terms of political and economic power, and expected social and cultural standards, Kavanaugh and other “defendants” would certainly merit the longstanding presumption of innocence (especially in court).
But for all the stunning progress made by women in America in recent decades, we still don’t live in that world or country, especially on the political and economic power and expected norms front. In this respect, those who insist that Christine Blasey Ford’s charges specifically pass the main legal tests developed over the past several centuries of Anglo-American jurisprudence overlook how thoroughly this jurisprudence has been developed from a male vantage point; how strongly this jurisprudence in turn has been shaped by equally long centuries of legally mandated subordinate status for women, along with assumptions of their biological and even moral inferiority (remember Eve?); and by the related and never-to-be-underestimated emotional and psychological need to rationalize this unequal treatment continually.
One crucial result that’s directly relevant to sexual assault cases is the longstanding stigmatization of women who come forward – as, e.g., actively responsible, passively complicit, irrationally or jealously misandrous (the male version of misogyny) – that has created towering barriers to any type of reporting, and equally towering incentives to keep silent, and even to try actively to forget. These barriers and incentives themselves have reflected beliefs in women needing to know their place and – as inherited especially from the Victorian era – to represent (male-created) ideals of purity and virtue. And the unjustified shame implanted in female sex offenses victims by these lingering Victorian prejudices must inevitably and greatly worsen the feelings of humiliation and pain and generalized fear that play their own immense and distinct role in both inhibiting prompt reporting and clouding memories.
The feminist movement directly challenges all these beliefs and practices. All movements seeking mass change on so many levels, and in such sensitive realms of life, will inevitably produce excesses. And surely because feminism (which of course has emerged in many different forms) has challenged the most fundamental element of any individual’s identity, and therefore has created such unusual tumult in our private as well as public lives, its excesses may have been, or at least seem, comparably unusual (especially from a male vantage point).
But the demand that the modern handling (legally and even politically) of sex offenses rigidly follow all or even most of the standards of fairness rightly prized for so long in other situations completely ignores all of these past inequities – as well as their ongoing legacy.
This doesn’t mean that women should always be automatically believed, or that the presumption of innocence should be abandoned wholesale, especially in legal proceedings. And it certainly doesn’t mean that all men are at least passive predators, much less that they require man-shaming – least of all in high school or college (where I’ve been told directly it’s become widespread in humanities and social sciences courses).
It does, however, mean that the nation recognize that the needed gender-related social and related cultural and social transformations that gained critical mass in the 1960s and 1970s are now, because of the #MeToo movement, proceeding at record speed – and that this acceleration is needed, too. Addressing sex offenses, as a result, has inevitably been thrown into a state of flux. Everyone, and every institution, is feeling their or its way – or at least should be. Given all the uncertainty created, mistakes and injustices will be unavoidable. But while ways should constantly be sought to prevent and minimize them, no one should pretend that in dealing with sex offenses, simply sticking to even America’s core notions of fairness and justice is entirely fair or just any more.